A company is confronted with a campaign of defamatory comments by one or more anonymous posters that is causing real reputational harm. The company has considered other alternatives detailed in Part 1 of this three-part series, such as posting a rebuttal or using the website’s own procedures to remove the posting. The company is frustrated and seeks advice on other options. At this point, the company can consider the litigation option — a lawsuit to unmask the identity of the anonymous poster and to bring suit for defamation. The company should not embark on the litigation option lightly and should be prepared for backlash from consumers and customers for its decision to sue, which again must be managed through its social media platforms and other public relations efforts.

Lawsuits to unmask the identity of anonymous posters raise competing First Amendment interests

There are competing interests at stake in lawsuits to unmask anonymous posters and state legislatures and courts have approached them in different ways. On the one hand, there is a long tradition in the United States of protecting anonymous speech under the First Amendment and this protection has been extended to those who use the internet. In McIntyre v. Ohio Elections Comm’n, the Supreme Court ruled, that “in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest requiring disclosure as a condition of entity.”

On the other hand, the First Amendment does not protect defamatory speech and a company should be able to pursue a case for false statements that damage its reputation. In Herbert v. Lando, the Supreme Court ruled that “spreading false information in and of itself carries no First Amendment credentials.” The type of speech at issue also impacts the level of protection afforded under the First Amendment. In these kinds of cases, commercial speech, which is defined as speech related to the economic interests of the speaker, is implicated and any statute that restricts this speech must assert a substantial government interest that cannot be served by a more limited restriction on the commercial speech.

Unmasking standards vary by state

These competing interests have led to different unmasking standards. In Virginia, an appellate court recently affirmed the issuance of a subpoena duces tecum to Yelp in a defamation suit by a carpet cleaning business, Hadeed Carpet Cleaning, Inc., against seven anonymous reviewers who allegedly posted false statements about the business. The court rejected Yelp’s First Amendment defense and found that the elements required by the Virginia unmasking statute had been met. The business had to show, among other things, that it had a good faith basis to believe that the comments posted were defamatory. The business relied on evidence that it had searched its database of customers to see if it could match the negative reviews to customers and it could not. In other words, the business could not match the work done for an anonymous reviewer (Bob G. from Oakton) to work actually performed. This supported its view that the reviewers were falsely representing themselves as customers of the business.

Other states have more rigorous unmasking standards reflected in state statutes or case law. For example, in New Jersey, in order to uncover the identity of an anonymous defendant, the plaintiff must show sufficient evidence supporting its prima facie cause of action and the court must balance the defendant’s First Amendment right to anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the identity. Applying this standard, the courts in New Jersey rejected an attempt to compel Yahoo to disclose the identity of the person who posted negative comments on a Yahoo bulletin board about a business because evidence of damage, an element of a claim for defamation, was not shown. Delaware has adopted an unmasking standard that requires the defamation plaintiff to be able to withstand a motion for summary judgment before obtaining the identity of the anonymous defendant.

Lawsuits to unmask anonymous posters can be an effective tool to consider when managing reputational risk

Companies contemplating a lawsuit against an anonymous reviewer need to be aware that there is no consistent standard for unmasking the identity of an anonymous reviewer. Each state may have different statutes or standards developed by courts. Since these kinds of suits require the plaintiff to obtain the identity of the person before their case is proven, some courts are reluctant to compel disclosure for fear it will chill the speech of persons who have engaged in protected speech. Given how the public may view these kinds of suits, companies should always pursue other ways of dealing with these kinds of comments and should view litigation as a last resort. Nevertheless, if the harm to reputation is great, a company should consider these suits as a way to address defamatory statements, particularly if the company suspects “guerrilla” tactics have been used by an aggressive competitor. As demonstrated by the recent Virginia court ruling, it can be a meaningful tool for dealing with these kinds of reputational issues.

Contributing Author

Mary E. Gately

Mary E. Gately is a partner at DLA Piper LLP (US) in Washington, DC and is the co-chair of the litigation department and Co-Managing partner...

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